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CHELLATURAI versus THE STATE REPRESENTED BY

High Court of Madras

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Chellaturai v. The State represented by - CRIMINAL APPEAL NO.274 OF 2004 [2007] RD-TN 865 (9 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

CRIMINAL APPEAL NO.274 OF 2004

Chellaturai .. Appellant

Vs.

The State represented by

The Inspector of Police,

Thuckalay Police Station,

Thuckalay,

Kanyakumari District. .. Respondent

This criminal appeal is preferred under Section 374 of the Code of Criminal Procedure, against the judgment dated 04.10.2004, made in S.C.No.229 of 2002, on the file of the learned Court of Sessions, Kanyakumari Division at Nagercoil.

For Appellant : Mr.V.Kathirvelu

For Respondent : Mr.A.Balaguru,

Additional Public Prosecutor

:JUDGMENT



(The judgment of the Court was made by M.CHOCKALINGAM,J.) The sole accused in a case of murder on being found guilty under Section 302 I.P.C and awarded life imprisonment by the Court of Session, Kanyakumari Division at Nagercoil, in S.C.No.229 of 2002, has challenged the said judgment of conviction and sentence in this appeal.

2. Briefly the case of the prosecution is as follows: (i) P.W.1 is the wife of the deceased Jothi. The deceased was a mason by profession. The family of the deceased and the family of the accused Chellathurai, were living in the adjacent houses. The elder sister of P.W.1 was given in marriage to P.W.2. P.W.2 was also living in the adjacent house and all the houses are situated in poramboke land. On 10.09.2001 in the evening at about 04.00 p.m, there was a wordy quarrel between P.W.1 and the wife of the accused as the hen of P.W.1 entered into the kitchen of the accused. P.W.1 told the said incident to her husband, since deceased, who came in the later hours after finishing his work.

(ii) On 11.09.2001 at about 02.00 a.m., a wordy quarrel arose between the deceased and the accused. Thereafter, the deceased and one Ramaiah, the grandfather of P.W.1, were sleeping in the pial and P.W.1 and her children were sleeping inside the house. On hearing the distressing cry, P.W.1 along with others came out of the house with a burning chimney and found the accused giving a blow to her husband with M.O.1, spade handle, near the left eye and kicked him on the stomach. The deceased fell down. Immediately, P.W.1 and P.W.2 raised alarm, but the accused threatened them. Thereafter, the accused dragged the deceased into his house, tied him in a pillar and took M.O.2, aakkathi, and cut the deceased on his left shoulder, left elbow and right thigh. P.W.2 and others witnessed the same and they could not come to his rescue since it was night and the accused was also sitting with M.O.2, aakkathi, nearby till the deceased died. After, the accused and his family members left their house. (iii) Thereafter, P.W.1 and P.W.2 came near the deceased and cut the coir rope in which the deceased was actually tied and found him dead. P.W.1 and P.W.2 proceeded to the respondent police at about 07.00 a.m. P.W.1 gave a report to P.W.5, the Sub Inspector of Police attached to the respondent police station, who recorded the same and registered a case in Cr.No.1842 of 2001 under section 302 I.P.C. Ex.P.1 is the report given by P.W.1 and Ex.P.7 is the F.I.R. The express F.I.R Ex.P.7, along with Ex.P.1, was despatched to the Court. (iv) P.W.8, the Inspector of Police in charge of the respondent police station took the investigation on receipt of the copy of the F.I.R, proceeded to the scene of occurrence and made an inspection in the presence of witnesses and prepared Ex.P.15, the observation mahazar and Ex.P.16, rough sketch. He recovered the material objects from the place of occurrence. The Investigating Officer also conducted inquest on the dead body of the deceased in the presence of the witnesses and Panchayatars and prepared Ex.P.19, the inquest report. The dead body of the deceased, following the requisition Ex.P.4 the was subjected to the post-mortem by P.W.4, the Doctor working at the Government Hospital, Thuckalay who gave Ex.P.5, the post-mortem certificate where he has opined that the deceased died out of shock and haemorrhage due to the injuries sustained, 12 to 18 hours prior to the post-mortem.

(v) Pending investigation, the accused was arrested on 12.09.2007 and when enquired, he volunteered to give a confessional statement, which was recorded by the Investigating Officer, in the presence of the witnesses and the admissible portion of which is marked as Ex.P.2 and following the confessional statement, the accused produced M.O.1 the wooden handle of the spade and also M.O.2 the Aakkathi and both M.Os.1 and 2 were recovered under a cover Ex.P.3, mahazar. All those material objects recovered from the place of occurrence, from the dead body and the weapon of crime produced by the accused, were subjected to chemical analysis, which resulted in two reports Exs.P.10 the chemical analysis report and P.11 the serologist report. On completion of the investigation, P.W.9, the Investigating Officer filed the final report. (vi) The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 9 witnesses and relied on 19 exhibits along with 10 M.Os. After the evidence on the side of prosecution was over, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused denied them as false. On the side of the defence, D.W.1 was examined and no documentary evidence was let in. After completion of trial, the trial court heard the arguments of both sides, perused the materials available, found the accused guilty as per the charges and awarded punishment as referred to above, which is the subject matter of challenge in this appeal.

3. Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution examined two eyewitnesses, namely P.W.1 and P.W.2 who are the wife and the co-brother of the deceased respectively and they are closely related to the deceased and hence, if the test of careful scrutiny is applied, their evidence should have been rejected by the trial Court on the ground of the discrepancies in the material facts and further in the instant case, the medical evidence did not corroborate the prosecution case. The learned Counsel added further that the lower Court should have rejected the testimony of P.W.1 and P.W.2. According to the defence, at the time of occurrence, there was a wordy quarrel following the same both the family members were sleeping and at about 02.00 a.m., it was the deceased who removed the roof of the house of the accused and jumped inside the house and at that time, the accused tied the deceased in a wooden pillar and rushed to the police station to give a complaint and at that time, it was the deceased who tried to outrage the modesty of the wife of the accused and at that juncture, it was the wife of the accused who gave him a blow with Aakkathi and as a result of it, the deceased died. The defence theory is clearly spoken to by D.W.1, the daughter of the accused, which remained unshaken, should have been accepted and the theory put forth by P.W.1 and P.W.2 should have rejected. Under such circumstances, the prosecution has not proved its case beyond all reasonable doubts.

4. Advancing his further arguments on behalf of the appellant, the learned Counsel would submit that even assuming that the prosecution has proved its case to the extent that it was the accused who attacked the deceased with the wooden handle of M.O.1, spade and also with M.O.2 aakkathi and the act of the accused would not attract the penal provision of murder, but only culpable homicide not amounting to murder. Even as per the case of the prosecution, there was a wordy quarrel at about 02.00 a.m., and following the same, the occurrence had taken place and thus, in that exchange of words, the accused has acted and it would be quite clear that the act of the accused neither intentional nor pre-meditated and the accused is entitled to the benefit available in the exceptions to the definition of murder and this has also to be considered by this Court.

5. The Court heard the learned Additional Public Prosecutor for the State on the above contentions and paid its anxious consideration on the submissions made by both sides and also scrutinised the materials available on record.

6. The fact that one Jothi, the husband of P.W.1, was attacked in an incident that had taken place at about 02.00 a.m., on 11.09.2001 in the place of occurrence of t and done to death is not the fact in controversy. The dead boy of the deceased Jothi was subjected to post-mortem and the Doctor who conducted the post-mortem has categorically given evidence and also in the post-mortem certificate Ex.P.5, that the deceased died of shock and haemorrhage due to the injuries sustained. Thus, the prosecution has proved that the deceased died out of homicidal violence. Apart from this, the accused has not questioned the said fact at any stage of the proceedings and hence, it has got to be recorded so.

7. In order to substantiate its case that it was the accused who attacked the deceased with M.O.1 wooden handle of spade at first and then, following the same, the accused dragged the deceased inside his house and attacked him with M.O.2, aakathi after tying him in a pillar. The prosecution examined two witnesses as direct witnesses to the occurrence who are P.W.1 and P.W.2. It is true that they are closely related to the deceased. After exercising the test of careful scrutiny only, the trial Court accepted the evidence since it inspired the confidence of the Court. In the instant case, the occurrence had taken place at about 02.00 p.m. It is not in controversy that the houses of both the families situate abutting each other and there was a quarrel took place between the wife of the accused and P.W.1 in the previous evening and following the same, the incident has taken place.

8. It is pertinent to point out that the availability of the accused and the deceased at the time and in the place of occurrence is not the fact in controversy. It is the case of the prosecution that following the wordy quarrel, it was the accused who attacked the deceased with M.O.1, wooden handle of the spade and following the same attacked with M.O.2 Aakkathi and the same was witnessed by P.W.1 and P.W.2. On the contrary, the defence came with the plea that it was the deceased who removed the roof of the house of the accused and jumped into the house and on seeing that, the accused tied him in a pillar and went to the police station and in the meanwhile, the deceased made an attempt to outrage the modesty of the wife of the accused and at that time, it was the wife of the accused who attacked him with M.O.2, Aakkathi. This defence theory has got to be rejected for the simple reason that even as per the defence plea, when the accused left the deceased, he tied the deceased in a pillar. If to be so, there was no question of any attempt which could be made by the deceased and hence, the introduced theory by the defence fails and it was rightly rejected by the trial Court.

9. Insofar as the evidence of P.W.1 and P.W.2 is concerned, this Court pointed out that their evidence has inspired the confidence of the Court and they have given clear evidence in one voice. Apart from this, in the instant case, the ocular evidence of P.W.1 and P.W.2 stands fully corroborated by the medical evidence. Yet another circumstance is which is in favour of the prosecution the recovery of M.O.1 wooden handle of the spade and M.O.2, aakkathi pursuant to the confessional statement given by the accused. This circumstance is also pointing to the nexus between the crime and the accused and thus, the prosecution has clearly proved its case that it was the accused who attacked the deceased with M.O.1 and M.O.2 and caused his death.

10. Coming to the question as to the nature of the act of the accused, the Court is able to see force in the contention of the learned Counsel for the appellant. In the instance case, there was a wordy quarrel at about 02.00 a.m., and following the same, the accused has attacked the deceased. As per the prosecution case, even in the F.I.R and through the witnesses, it would be quite clear that the act of the accused is neither intentional nor pre-meditated, but due to exchange of words at about 02.00 a.m., at the time of the occurrence, the accused caused the death of the deceased. Under such circumstances, this Court is of the considered opinion that on the mitigating circumstance found the act of the accused cannot be termed as murder, but it is only culpable homicide not amounting to murder and would attract the penal provision of Section 304(i) I.P.C and imposing the punishment of seven years rigorous imprisonment would meet the ends of justice.

11. Hence, the conviction under Section 302 I.P.C is modified into one under Section 304 (i) I.P.C and the sentence of life imprisonment is modified into rigorous imprisonment for seven years.

12. With the above modification in the conviction and sentence, the criminal appeal is dismissed.

rsb/gb

To

1.The Court of Sessions,

Kanyakumari Division at

Nagercoil.

2.The Inspector of Police,

Thuckalay Police Station,

Thuckalay,

Kanyakumari District.

3.The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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